The Supreme Court has ruled that children should be treated differently from adults. Why do we still sentence them to die behind bars?

March 13, 2012

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Those of us who haven’t blocked out our memories of middle school probably recall agonizing over things like what to wear or feeling inexplicably moody or depressed. And with good reason. The emotional instability and intense pressures that characterize adolescence are so significant that the US Supreme Court has said children require different treatment under the Constitution when they are convicted of even the most serious crimes.

In Roper v. Simmons, which ruled out the death penalty for under-age offenders in 2005, the Court reasoned that “juvenile offenders cannot with reliability be classified among the worst offenders” because they are less mature and their sense of responsibility has not fully developed. They are more vulnerable to negative internal and external influences, including peer pressure. Unlike adults, they can’t control or escape dysfunctional homes and dangerous neighborhoods—two major contributing factors to youth crime. They also have a greater chance for rehabilitation. Thus, as the Court said, “from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult.”

In 2010, the Court applied the same guiding logic in its decision in Graham v. Florida, concluding that children convicted of non-homicide crimes cannot be sentenced to life imprisonment without parole. As Justice Kennedy wrote for the majority, “Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.”

On March 20, the Court will hear oral arguments in two cases, Jackson v. Hobbs and Miller v. Alabama, that ask whether it’s ever constitutional to condemn a child to die in prison. The petitioners, Evan Miller and Kuntrell Jackson, both of whom were convicted of murders committed when they were just 14, argue that, by the Court’s own logic, it is not. As attorney Bryan Stevenson argues in a summary of the Miller argument: “To wholly disregard a 14-year-old offender’s age and age-related characteristics in sentencing him to be imprisoned for the remainer of his existence makes a mockery” of the precedent set by the Court in Roper and Graham.

The recognition that children are different is supported by recent neuroscience and psychosocial studies that have shown adolescence to be a period of intense change in the brain. We now know that the parts of the brain that drive emotional reactions, impulses and reactivity to peers develop before those that control impulses and imagine consequences, and which enable adults to resist pressures, delay gratification and weigh risk and reward. Scientists who study the teenage brain describe it as akin to a car with a fully functioning gas pedal but no brakes.

The law recognizes the developmental and biological factors that differentiate children as a class in literally hundreds of areas. State and federal laws recognize that kids are especially vulnerable by punishing adults who victimize them, expose them to illegal activities, force them to work in dangerous or exploitive conditions, or fail to make sure they wear helmets and seatbelts. Dozens of laws acknowledge that children are too immature and irresponsible to vote, serve on juries or drink alcohol. And a whole body of law prevents children from engaging in activities with consequences considered to be beyond their comprehension, such as entering into contracts, marrying, quitting school—even getting tattoos.

A criminal justice system that allows children to be tried and sentenced as adults stands in stark contrast to such well-established laws. Rather than a research-based response to serious juvenile crime, the laws and provisions that have led children to be sentenced to die behind bars are an accident of two overlapping trends, both based more on rhetoric than reality.

In the rush to prove that they were “tough on crime,” state legislators over the past several decades have made life-without-parole sentences more widely available for adults than ever before in our nation’s history (and prison populations nationwide have skyrocketed as a result). In the 1990s, a small group of academics capitalized on and galvanized a growing hysteria about violent crime by youths, speculating that an anticipated rise in the youth population, coupled with spurious theories about the exceptional deviance of children of color growing up poor, would lead to a new generation of “severely morally impoverished juvenile super-predators…capable of committing the most heinous acts of physical violence for the most trivial reasons.” Fearing that the rehabilitation-focused juvenile justice system would be inadequate to protect society from this impending menace, lawmakers passed laws that circumvented juvenile court and sent kids to criminal court for prosecution as adults.

The same expert who coined the term “super-predator” now acknowledges that it was nothing but a ghost story, a terrifying myth with disastrous consequences. In an amicus brief to the Supreme Court in support of Miller and Jackson, this expert—and others—note that the juvenile crime rates actually dropped from 1994 to 2000. But a relative handful of children accused of serious crimes—a grossly disproportionate number of them children of color—found themselves caught permanently in the web spun by academics and politicians, sentenced to die in prison with no hope of release no matter how they might transform and reform themselves. Once we give up on these children, many prisons compound the hopelessness by failing to provide access to educational programs.

This rogue area of the law must be brought back into line with our longstanding legal tradition and our longstanding common sense that affirms—in myriad ways and on a daily basis—that kids are different from adults. We have to judge them accordingly, because children are still children, even when they do unimaginably horrible things. And unlike the way Miller and Jackson were deemed permanently incorrigible for things they did as children, the Court judges us, as a society, by how we have grown up and matured over the years. Based on our “evolving standards of decency,” a deeper understanding than ever of adolescent development, and the debunking of vicious myths, the Court should reject life-without-parole sentences for all children.

Randy HertzRandy Hertz is the Vice Dean of the NYU School of Law and Director of the law school’s clinical program.